Citation Nr: 1602337	
Decision Date: 01/20/16    Archive Date: 01/27/16

DOCKET NO.  10-27 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial compensable evaluation for residuals, shell fragment wound of the right hand.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION


The Veteran served on active duty from January 1967 to May 1969.

This matter comes properly before the Board of Veterans' Appeals  (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In November 2014 and August 2015, the Board remanded the claim for further development.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.  It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status.  Id.
 
In a Board remand of August 2015 the RO was requested to schedule the Veteran for a VA examination to determine the current level of severity of the service connected right hand disability.  However, a review of the claim file shows that the file has been returned to the Board without completion of the requested development.  There is no indication that a VA examination was conducted and the December 2015 appellate brief from the Veteran's representative notes that a supplemental statement of the case has not been issued.  Therefore, the Board finds that the RO did not comply with the Board's order and unfortunately, this case must be remanded once again.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to determine the current level of severity of the service connected right hand disability.  The examiner should be given access to the Veteran's VBMS file and they must state in the examination report that a review of the file was conducted.  All appropriate testing should be conducted to include ranges of motion of the right hand including the fingers, and an examination of any scars present.  The examination report must include a complete rationale for all opinions and conclusions reached.
 
2 . The RO/AMC should also undertake any other development it determines to be warranted.
 
3.  The RO/AMC should then adjudicate the claims.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO/AMC should issue a supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate action


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).